IMPORTANT POINT
Writ jurisdiction can be exercised by High Court for enforcement of a legal right.

Headnote:Constitution of India-Article 226 -Writ petition seeking direction to respondent Bank to absorb petitioner as regular employee as petitioner had worked for 492 days as Badli Subordinate Staff/Sepoy in Bank-Claim was based on bipartite agreement-Writ petition was allowed-Division Bench set aside judgment holding that bipartite agreement could not be enforced by writ-Appeal-No such objection on maintainability of writ had been raised -Writ jurisdiction could be invoked for enforcement of legal right particularly based on undisputed documents-Examination of undisputed documents and facts was not debarred in a proceedings under Article 226 of the Constitution-Since appellant had worked for more than 240 days in a block year as Badli Sepoy, in terms of bipartite agreement he was entitled to be absorbed as regular employee-Judgment of Single Judge High Court was liable to be restored-Relief modified in terms of general policy of Bank to reduce number of new recruits and offer voluntary retirement scheme.
       Held : On the earlier occasion when the matter was considered by the Division Bench the respondent-Bank did not raise any issue of alternative remedy or any question relating to non-maintainability of the writ petition. We may also notice that when such issues might and ought to have been raised but had not been done so, it must be taken that the Division Bench had rejected such contentions and the order of the Division Bench remanding the matter to the learned single Judge was not carried in appeal and became final. Therefore, the learned single Judge was bound to address only on one issue upon which the matter had been remanded. Thus, the Division Bench could not have overlooked these facts in the appeal arising from the order of the learned single Judge on the second occasion after remand and need not have gone into the question as to whether the writ petition could have been entertained at all or not. Therefore, we are of the view that the High Court could not have overlooked these facts and interfere with the order of the learned single Judge. It is too elementary to state that powers under Article 226 of the Constitution could be exercised for the enforcement of Fundamental Rights available under Part III of the constitution, and also for any other purpose. High Courts have often exercised their power under Article 226 of the Constitution for enforcement of a legal right. It is, therefore, open to the learned single Judge to issue an appropriate direction to the respondent-Bank, if otherwise justifiable on facts. To make matters clear, we may cite Style (Dress Land) V. Union Territory Chandigarh, 1999 (7) SCC 89, in which this Court held that:
       "...Action of renewability should be gauged not on nature of function but public nature of the body exercising that function and such action shall be open to judicial review even if it pertains to the contractual field." (Paras 12 and 13)
       Thus a Badli workman only means a person who is employed as a casual workman who is working in place of another. By virtue of bipartite agreement published in the circular No. XVIII/90/20 dated 7th September 1990 of the Federation of the Bank, such a Badli worker is entitled to be absorbed if he completes 240 days of badli service in a block of twelve months or a calendar year after 10th February 1988. Based on the conclusion arrived at by the learned single Judge after considering the relevant documents, the fact of Appellant s service for the required period cannot be disputed. Nomenclature of his work profile may change, but it is clear that he rendered services in a vacancy of a temporary post for more than 240 days. This is sufficient to treat him as a Badli for the purpose of absorption. Hence, he has a legal right to be absorbed in the Respondent bank by virtue of the bipartite agreement. (Para 17)
       At this stage, the learned counsel for the Respondent-Bank submitted that now the Bank has taken a policy decision to down size its work force by reducing the number of new recruits and also offering Voluntary Retirement Scheme to the existing employees. It would not be proper to give a direction to absorb an additional employee against the general policy of the Bank. In the circumstances, in modification of the relief granted by the learned single Judge, we direct that the respondent-Bank shall absorb the appellant in a vacant post or, in the absence of any vacancy in an appropriate post, compensate the appellant monetarily. The compensation shall be calculated in accordance with Voluntary Retirement Scheme of the respondent-Bank on the basis that the appellant had been regularised in service on 1st January 1999 and voluntarily retired from such service from the date of this judgment. Either of the benefits must be granted within two months from today. (Para 19)

JUDGMENT

Rajendra Babu, J.-Whether the Appellant is a badli worker and, if so, is he entitled to be absorbed in the Respondent bank is the matter for judgment in this case.

2. Appellant s case is as follows. That he was appointed as a Badli Subordinate Staff/Sepoy against one permanent vacancy in the Shyamsundar Branch of the Bank of India on 30/10/1988 and worked there up to 16/04/1991, for about 492 days. On 16/4/1991 the Branch Manager of the bank asked him not to work anymore. Later he made a representation to the Zonal Manager requesting to appoint him as a regular employee in the bank by quoting the circular No. XVIII/90/20 dated 7th September 1990 of the Federation of the Bank which referred to absorption of Badli Sepoys and the bipartite agreement entered between management and Union regarding the same which provides that :

"...a Badli worker who has more than 240 days worked in the permanent vacancy after February 1988 in a block of 12 months would be absorbed against clear vacancy as and when they arise."

3. Since he did not receive any reply from the Bank, he moved a writ petition before the High Court seeking a direction to the bank for absorbing him as a regular employee.

4. Stand maintained by the Respondent bank before the High Court in its affidavit-in-opposition inter alia is that the Appellant herein was only working as a coolie and not as a Badli Sepoy, therefore he is not entitled to be considered for absorption.

5. Vide order dated 14/3/1996 the learned single Judge of the High Court allowed the writ petition and directed the bank to absorb him. This decision was challenged in Appeal before the Division Bench. The Division Bench [speaking through V.N. Khare, Chief Justice (as His Lordship then was)] allowed the appeal in the following terms :

"We have looked into the records and the affidavit-in-opposition of the Bank authorities and find that it was the definite case of the Bank authorities, appellants herein, that the writ petitioner was not a Badli worker and at any rate was not entitled to be absorbed in service. Learned single Judge while allowing the application did not consider that aspect of the matter. Learned single Judge ought to have first found out the status of the writ petitioner as to in what capacity he worked with the bank. In the absence of such a finding, the impugned order/judgment of the learned single Judge deserves to be set aside. We accordingly set aside the impugned order/judgment.

We send the writ petition back to the learned single Judge to dispose of the same after consideration of the stand taken by the Bank in its affidavit-in-opposition, with a direction to dispose of the same as early as possible."

(Emphasis Supplied)

6. Thus the matter again came back before a single Judge. After appreciating the various documents the learned single Judge arrived at the conclusion that the Appellant was working with the Bank during the relevant period by holding that :

"Pursuant to the order passed by this Court as quoted above various documents was produced. Inspection was taken and note thereof was prepared and signed jointly by both learned lawyers. It appears to me from the contents of the joint notes that the petitioner was engaged by the Bank in order to accept his services in place of a permanent sub-staff. He was paid salaries. Moreover when the petitioner made representation by forwarding two letters being annexure `A and `B , the respondent Bank did not deny nor give a reply to the same. The writ petitioner has also annexed various documents written by third parties evidencing the petitioner s engagement in the Bank in the capacity of the sub-staff. These documents have also got corroborative value of the fact the petitioner s service being rendered in the capacity of the sub-staff.

On the facts and circumstances of this case I am of the view that the petitioner has rendered his services more than 240 days in a particular calendar year. At least the petitioner rendered continuous services

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2003 Supreme(SC) 1324

IMPORTANT POINTWrit jurisdiction can be exercised by High Court for enforcement of a legal right.

Cases Referred (6)

IMPORTANT POINT
Writ jurisdiction can be exercised by High Court for enforcement of a legal right.